Collaborative Law: Tools for a New Age

Vol. 1,No. 2

Holly M. Hohlbein

Holly M. Hohlbein is a family law attorney in Kirkland, Washington. She is an early pioneer of collaborative practice in the Northwest and is a trainer, author, and presenter on CP. She is a founder and leader of various local and regional CP organizations. Contact her at hollyh@hhattorney.com or visit her on the web at www.hhattorney.com.

The last 30 years have seen unprecedented growth in alternatives to the traditional legal system. Escalating client—and lawyer—dissatisfaction with litigation coupled with myriad economic and cultural changes have fueled the development of new and improved models of conflict resolution. One of these evolving models is collaborative law, developed by lawyer Stu Webb over 20 years ago in Minnesota. More than just a friendly agreement to be civil and “work things out,” collaborative law and other processes like it are literally rewiring practitioners to a new way of lawyering, and paving the way for a new age of conflict resolution.

Collaborative What?

Collaborative law (sometimes called collaborative practice or collaborative divorce) departs from litigation in that it is organized around the idea of “turning down the heat” for people in conflict, in contrast to litigation that turns the heat up. In a collaborative case, all parties and professionals sign a contract that they will do settlement work only, and will not litigate the case. Either party may terminate the process at any time, at which point all professionals must withdraw. The withdrawal (or “disqualification”) allows for a safe container in which all possibilities may be explored without fear of litigation . . . and litigators. You might wonder; “what replaces the threat of a trial in order to get warring parties to be reasonable?” The answer might surprise you: Strategically engineered mutual self-interest. Collaborative law’s success is built on creating the conditions under which human beings will work together because it gets them closer to achieving their goals than if they operate on their own. If you’re curious about how this works, try Googling “the prisoner’s dilemma.” Other core collaborative law principles include full transparency, strict confidentiality, and fully integrated “teams” of interdisciplinary professionals such as financial analysts and mental health practitioners (particularly for divorce work). Although collaborative law is used predominately in family law, it has a growing presence in other areas such as employer-employee relations, business disputes, elder law, and medical malpractice.

Learn the Ropes

There are no legal requirements to become a collaborative professional. However, the majority of collaborative professionals are members of professional organizations that have training requirements, practice protocols, and standardized forms. In addition to the nuts and bolts of how to conduct a case, the introductory training focuses on skill-building in interest-based negotiations, facilitative dialogue, the principles of “strategic cooperation,” the neuroscience of conflict, and other cutting-edge techniques. Once practitioners are fully trained they can begin to work cases, usually within a supportive community of collaborative colleagues while they “learn the ropes.” Collaborative lawyers generally experience more job satisfaction than their litigation colleagues, partly due to the fact that their clients are more satisfied with the process and outcome. This is true even for contentious cases with high conflict and difficult legal issues. For more information about collaborative practice, visit www.collaborativepractice.com. There are also books written for practitioners; a few of the best I’ve found are Collaborative Divorce Handbook: Helping Families Without Going to Court, by Forrest S. Mosten(2010); and Collaborative Law: Achieving Effective Resolution Without Litigation, by Pauline H. Tesler (2009).

Everyone Can Benefit from Collaboration

Interestingly, the skills acquired in collaborative training aren’t limited to collaborative practice; these skills are critical to all types of negotiations. Acquiring them can help every lawyer become a higher level negotiator. Studies suggest the benefits of self-interested cooperation in theory and in practice. A 2006 study of family law attorneys by Andrea Kupfer Schneider at made a surprising discovery: negotiators who were considered by colleagues to be flexible, helpful, and trustworthy had better negotiated outcomes than those who used “hardball” tactics. While it’s not too surprising that the former are considered skilled negotiators, you may be surprised to learn that they also are considered better negotiators than their hardball colleagues. The ABA’s Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money (2011) is a must-read for any lawyer who negotiates (professionally or personally; think about the last time you talked to your spouse about where to vacation or how to spend that unexpected bonus money). The brainchild of law professor John Lande, planned early negotiation (PEN) uses many of the skills that collaborative practitioners excel at. In addition, Lande’s book is a “how to” text on building a successful practice no matter what area of law you practice in.

Knowledge Is Power

Even if you aren’t interested in becoming a collaborative practitioner yourself, it’s useful to understand how it works. Part of our ethical responsibility as lawyers is knowing what options exist for clients in resolving the problems they bring to us. Being educated about collaborative law helps ensure that you are fully informing your clients about all of the options that might help them achieve their goals. Like Macy’s sending a customer to Gimbels’ for something Macy’s doesn’t carry in the movie Miracle on 34th Street, you can build client goodwill and generate future referrals even when you refer to a practice area you don’t do. You might even refer them to one of the books targeted to potential collaborative clients, such as The Collaborative Way to Divorce by Stuart G. Webb/Ronald D. Ousky (2007), and Collaborative Divorce by Pauline H. Tesler and Dr. Peggy Thompson (2007).